Ruling on affirmative action ban now being argued in Utah same-sex marriage case

Comments

The problem with this particular bit of insanity is that banning an affirmative
preference is not what was at play here. The people of the state of Utah
decided to deprive people of their rights, not give LGBT a privileged status. I
know that "special rights" plays to the peanut gallery at a GOP
convention or a neighborhood Tea Party rally, but where thoughtful educated
people gather such nonsense holds no water. The Sutherland Institute is an
increasingly desperate organization and the only thing the people of Utah should
be demanding is that their reputation and historic legacy be salvaged by giving
this disgusting bigoted defense of Utah's ban a rest.

KallySalt Lake City, UT

May 4, 2014 1:13 p.m.

@ Sal: Interesting thing about the 14th Amendment - it makes no mention of
race.

Amendment XIV, Section 1. "All persons born or
naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws."

MaaronSLCSalt Lake City, UT

May 4, 2014 12:43 p.m.

Schaer's brief states:

"A couple has no gender, which is by
definition a characteristic of an individual. Here, there is no dispute that
Utah’s marriage definition treats individuals the same with respect to
sex: to marry, each must choose someone of the opposite sex, and consequently
Utah’s law is neutral with respect to sex."

So, let me
change a few words and see how it reads now:

"A couple has no
race, which is by definition a characteristic of an individual. Here, there is
no dispute that Utah’s marriage definition treats individuals the same
with respect to race: to marry, each must choose someone of the same race, and
consequently Utah’s law is neutral with respect to race."

USU-LoganLogan, UT

May 4, 2014 11:35 a.m.

@Sal

The case brought before the courts had everything to do with a
man and another man or a woman and another woman who had been denied marriage
based on gender.

Laura BilingtonMaple Valley, WA

May 4, 2014 10:41 a.m.

@Sal------ Richard Loving’s valid (in DC) marriage license was not
recognized in VA because the person he chose to marry was black. Had Mildred
Loving been white, their marriage would have been recognized. The court
affirmed his right to marry and to choose his own partner and said that the race
restriction (enshrined in VA law) was not imposed for any rational reason, and
that the state government needed to show a compelling state interest before they
could impose restrictions. That is exactly the argument that SSM lawsuits are
using.

SalProvo, UT

May 3, 2014 7:42 p.m.

Laura, the case brought before the courts had everything to do with a black and
a white who had been denied marriage based on race. They didn't need to
mention 'marriage'.

Laura BilingtonMaple Valley, WA

May 3, 2014 6:38 p.m.

@Henry Drummond says “the State of Utah was practicing marital Affirmative
Action by giving special preference to opposite sex couples.”

Utah did not “give preference” to opposite sex couples; it
required them to be opposite sex in order to marry and denied licenses to same
sex couples. Unlike seats in the freshman class, there are not a limited
number of marriage licenses available.

To all readers who give the
slippery slope argument: Years ago, many states set the age of consent for
marriage at 21. In the seventies they were all lowered to 18. No one has ever
sued to lower the age to 12 on the grounds that “if you lower it from 21,
there’s no reason not to lower it to 12”. Since Loving was decided
over 50 years ago, no one has sued, arguing that since the same-race laws were
deemed invalid, the state could not uphold laws regarding consanguity.

@Sal--please read the Fourteenth Amendment before you talk about what it
guarantees. It doesn't mention marriage at all--just says that a state
cannot make laws which deny citizens equal protection. This was the clause that
was used in Brown to throw out school segregation laws.

Riverton CougarRiverton, UT

May 3, 2014 5:16 p.m.

"This is not true of same-sex couples - denying them the right to marry
someone of the same gender makes access to marriage meaningless and is a de
facto denial of the right to marry."

BUT same-sex couples are not
denied the right to marry someone of the opposite sex, and heterosexuals are
also denied the "right" to marry people of the same sex. If it's
between a man and a man, it's not a marriage. Simple as that.

JeffreyRO555Auburn Hills, MI

May 3, 2014 2:21 p.m.

How on earth does a decision regarding affirmative action relate to denying gay
people their constitutional right to equal treatment? Utah is really reaching on
this one. Their case is just that weak, I guess!

SalProvo, UT

May 3, 2014 12:18 p.m.

There is nothing in the Constitution that guarantees equality in marriage for
same-sex individuals. Amendment 14 guarantees equality in marriage between a
man and a woman--no mention of same-sex unions. It's a stretch for the
courts to interpret it as such.

The Supreme Court should allow this
to play out in the states, one by one. The people have the right to amend the
Constitution, not the courts.

QuercusQateWasatch Co., UT

May 3, 2014 11:49 a.m.

@wrz 9:05 p.m. May 2, 2014

"...of legal age, only one person, not
already married, no close relative, only man/woman....

One of these
things is not like the other. The first 4 have a rational basis for exclusion
from state marriage laws; the 5th, on the other hand, does not. Two consenting
adults, be they male/male, female/female, or black/white do NOT have a rational
reason to be told they can't marry like the other hetero, white folks.

For the sake of those of us who have to endure your repetitive and
faulty logic-a-fying, abandon your silly argument for inequality in CIVIL law.

KallySalt Lake City, UT

May 3, 2014 11:33 a.m.

@ Alfred: Your inability to inarticulate a logical, legal argument against
same-sex marriage does not automatically mean that there are no logical, legal
arguments against the scenarios you posit.

There are very sound,
logical, legal reasons against child marriages, marriages to animals, and
marriages to inanimate objects.

There are sound, logical, legal
reasons against incest and incestuous marriages. (FYI - parent/child,
sibling/sibling, aunt or uncle/niece or nephew relationships are all forms of
incest - listing them all individually doesn't change that.)

Cousin marriages are already allowed under certain circumstances in many
states and even states which don't allow them or whose circumstances have
not been clearly met, recognize them as valid marriages.

There are
several legal issues that exist in polygamous relationships that do not exist in
couple marriages - until those issues can be resolved, they present valid
reasons not to allow polygamy.

You can throw as many slippery-slope
red herrings around as you want - they won't suddenly become logical, legal
reasons for prohibiting same-sex marriage.

Henry DrummondSan Jose, CA

May 3, 2014 11:01 a.m.

Gene Schaerr's argument was that the State of Utah was practicing marital
Affirmative Action by giving special preference to opposite sex couples.
I'm not sure how a Supreme Court ruling that goes against the concept of
Affirmative Action helps you. You're kinda of arguing the case for the
other side.

Daedalus, StephenARVADA, CO

May 3, 2014 10:17 a.m.

As others have noted, the Michigan case (Schuette) doesn't help Utah's
case.

Google: 12-682_j4ek.pdf for the Schuette opinion.

SCOTUS overturned the 6th Cir. holding that Michigan's
voter-approved ban on racial preferences within public sector employment,
education, and contracting was unconstitutional. SCOTUS held that the 6th Cir.
misapplied a prior ruling (Seattle) which had a narrow holding: it is
unconstitutional for voters statewide to narrowly target and overturn a local
school district's agreement to remedy historical racial
discrimination/segregation through busing. In Seattle, there were overtones of
unconstitutional segregation of public schools.

In contrast, in
Schuette there is no fundamental right for any race to receive preferential
treatment, so it does not matter if voters take the power to use racial
preferences out of the hands of public university regents/boards, etc.

Schuette's comments about the deference that courts must afford
state/local laws is phrased as stating-the-obvious, but that general rule is
repeatedly qualified to make clear that such deference applies only when the
state laws do not violate the U.S. Constitution, an idea also mentioned as a
sort of no-brainer.

Furry1993Ogden, UT

May 3, 2014 8:31 a.m.

@wrz 9:05 p.m. May 2, 2014

I've heard your argument before, back
in the 1960s. Only then it said "There is no denial of constitutional
rights re marriage in Utah... All can marry provided they meet state
requirements, including: of legal age, only one person, not already married, no
close relative, only someone of the same race, etc.....There you have it... the
Constitution is not being violated when states ban inter-racial marriage."
The US Supreme court, in a unanimous decision in Loving v Virginia, 388 U.S. 1
(1967), said that argument is totally wrong. Sorry -- your argument is a loser.

This article sounds like high quality satire. Mr. Schaerr is a lawyer--what
was he thinking?

Racial preferences are given to give a leg up to
blacks, who have the double whammy of having been discriminated against
historically e.g. slavery, housing restrictions, poorer schools. Affirmative
action programs can include preferences in admission or hiring in situations
where there are a limited number of positions available, extra programs to
encourage minority teens to apply, enrichment programs in schools to enable
those with poorer home backgrounds to gain the skills to pass the entrance
tests, etc.

And this relates to marriage equality---how?

Are there programs in Utah to encourage gays--but not straights--to marry?
Are there a limited number of marriage licenses available each year in Utah and
a percentage of these are being reserved for gays? Are high schools teaching
Marriage and Family Life to only a limited number of students, and gay kids are
being given preference?

If--big IF-- any of these were the case,
then Schaerr would have a case--but the remedy would be to eliminate the
"preferences" in these programs and expand the number of slots to allow
all to participate.

My2CentsTaylorsville, UT

May 3, 2014 3:31 a.m.

FYI, equality is not a guaranteed right and never has been. They do have the
right to have equal opportunity and what they do with opportunity is not
something government or legislation has control of.

This supreme
court ruling is directed at all civil law cases regardless of the racist
Sodomayer objects to and its stated in the ruling as such. The LGBT has no
arguments now and neither does the NAACP and ACLU and all the race based
organizations policies.

Law of the land is that civil laws are not
guaranteed and subject to state and local government creation and enforcment for
the reasons that the constitution cannot be fair if it is used as a socialist
tool to argue freedoms, liberties, and rights. Being gay is not a right just as
being a criminal, a Jew, a christian, a lawyer is not a right.

The
LGBT is a dead issue for the supreme court. In their divine and worldly
knowledge and wisdom our forefathers omitted civil and human rights laws from
federal government and the bill of rights knowing the prejudices and arguments
of chaos they can become. Then gave that power to each state to regulate.

AlfredPhoenix, AZ

May 2, 2014 11:51 p.m.

Red Corvette:"Dream on folks. Enjoy those fantasies until the Supreme
Court rules that gay marriage equality is the law of the land."

In which case everyone will soon be able to marry whom they choose and as many
as they choose... including father, mother, son, daughter, aunt, uncle, cousin
,teens, sub-teens, and perhaps even someone else's spouse or your fav
pony... in which case marriage will become a worthless and vanishing ritual.

KalindraSalt Lake City, Utah

May 2, 2014 11:20 p.m.

Many legal scholars point to two major differences between the affirmative
action case and same-sex marriage cases:

1 - Saying that state
universities cannot use race in determining admissions is not denying anyone the
right to attend college simply because of their race - members of minority
groups still have the right to attend college. This is not true of same-sex
couples - denying them the right to marry someone of the same gender makes
access to marriage meaningless and is a de facto denial of the right to
marry.

2 - Not being able to attend a specific university or college
does not create a harm - the applicant can choose to attend a different
university or college. This is not true for same-sex couples or their children
and therefore denying them the protections and responsibilities of marriage does
create a harm.

It is established principle - reaffirmed by Kennedy in
the recent ruling on affirmative action - that rights cannot be taken from the
minority by the majority and laws, no matter how passed, cannot create a social
harm against a discrete group.

These are two completely separate
issues and the ruling in one does not foretell the ruling in the other.

Kevin J. KirkhamSalt Lake City, UT

May 2, 2014 11:16 p.m.

The Michigan case was about whether voters can deny the granting of rights not
offered to others. The Utah case is about whether voters can deny the equal
rights to some while offering them to others. It's sad that the Gene
Schaerr can't see the glaring difference between the two. I haven't
seen something taken so badly out of context since I was speaking with the
antis. Gene Schaerr should be ashamed. I am ashamed that he claims to
represent Utahns and claims to represent honest legal debate.

Seldom Seen SmithOrcutt, CA

May 2, 2014 9:56 p.m.

Our country has no cultural norms, America is disintegrating.

LovelyDeseretGilbert, AZ

May 2, 2014 9:36 p.m.

Wow Gene Schaerr is phenomenal. I can see why he doesn't lose very many
cases. The Supreme Court is making it clear that States have rights and that all
rights are given to the people by the people and not to the people by the
Judiciary.

When this is over, Schaerr should be Times man of the
year, Utah should give him the key to the State.

rhappahannockWashington, DC

May 2, 2014 9:27 p.m.

Many of us have suffered abuse at the hands of those who have gone against
nature. It is insulting to us to see gay marriage be promoted as a healthy
lifestyle. Some consideration should be given to victims of abuse in this
debate.

wrzPhoenix, AZ

May 2, 2014 9:05 p.m.

"...Peggy Tomsic wrote that the ruling 'did not and could not hold that
voters can deny constitutional rights.'"

There is no denial
of constitutional rights re marriage in Utah... All can marry provided they
meet state requirements, including: of legal age, only one person, not already
married, no close relative, only man/woman, etc.

"Kennedy said
nothing in the Constitution or the court's prior cases gives judges the
authority to undermine the election results."

There you have
it... the Constitution is not being violated when states ban SSM via a voter
approved State Constitutional amendment... That includes not only SSM but a
plethora of other banned marriage arrangements (such as noted above).

WillemLos Angeles, CA

May 2, 2014 9:01 p.m.

Friends this case has been lost long ago , equality for all will be the rule in
our country very soon.

FatherOfFourWEST VALLEY CITY, UT

May 2, 2014 8:40 p.m.

So those who previously stated that LGBT equality was nothing at all like the
civil rights movement or race-based rulings are now invoking a race related
argument to shore up their case? Color me surprised.

A ScientistProvo, UT

May 2, 2014 7:15 p.m.

Reflectere wrote:

"It's called fortifying - not scrambling.
He obviously understands his case enough to identify current rulings which
enhance the argument."

Yes, "fortifying the truthiness of the
argument".

A sophistic technique used by those for whom truth and
reality are plastic.

ReflectereUtah, UT

May 2, 2014 6:30 p.m.

It's called fortifying - not scrambling. He obviously understands his case
enough to identify current rulings which enhance the argument.

Furry1993Ogden, UT

May 2, 2014 5:59 p.m.

Schaerr is really scrambling. I guess he knows exactly how weak his case and
position really are.